ACLU plans to sue over Amendment One

The American Civil Liberties Union of North Carolina has cleared the first hurdles of an extensive process to mount a constitutional attack on North Carolina’s Amendment One, the state’s ban on gay marriage.

As the ACLU embarks on a $10-million campaign to achieve same-sex marriage nationwide, the organization announced last week it would amend an existing federal lawsuit in N.C. addressing second-parent adoption rights for gay couples.

The revised legal challenge, if approved, could result in the striking down of Amendment One — a ballot initiative that N.C. voters passed by a margin of 61 percent to 39 percent last year.

“We’re challenging North Carolina’s ban across the board,” said Chris Brook, the ACLU’s state legal director.

Three weeks after the U.S. Supreme Court invalidated part of the federal Defense of Marriage Act, attorneys representing gay couples, like Brook and his partner, have scrambled to decipher potential legal implications of Justice Anthony Kennedy’s majority opinion.

Gene Nichol, a UNC law professor, said in an email the court’s ruling has left voter-approved gay marriage bans, like North Carolina’s, on shaky ground.

“The DOMA case held that restrictions on the intimate and private decisions of lesbians and gay men — including marriage — can’t be based on the mere desire of the majority to express disapproval or disdain,” he said.

Holning Lau, president of the ACLU of North Carolina and a UNC law professor, said Kennedy’s emphasis on the potential harms and “humiliation” caused to children by discrimination against their gay parents will bolster the ACLU’s argument.

“What we’ve seen in other states is, when they’ve tried to go to court to defend a same-sex marriage ban, they often argue that legalizing same-sex marriage is bad for children,” Lau said.

“But Justice Kennedy’s discussion about children is applicable — and very clearly so — to the six families in this case.”

The ACLU’s original case involved six gay couples in North Carolina, who sued the U.S. government in 2012 because both partners could not register jointly as legal guardians for their children without a legal marriage.

N.C. Attorney General Roy Cooper announced last week he would not oppose amending the lawsuit to include Amendment One claims. He would defend both the constitutional gay marriage ban and the current state law in court if the challenge came to fruition.

Terri Phoenix, executive director of UNC’s LGBTQ Center, said a successful ACLU lawsuit could lead to professional and personal gains for many N.C. families, like Phoenix’s.

Because Phoenix’s wife is the biological mother of their child, she is the only legal parent on paper, Phoenix said.

“Because N.C. does not recognize our relationship, my child is just a kid that lives in my house, and I have no parental rights whatsoever to that child,” Phoenix said.

ACLU lawyers are now waiting for a U.S. Middle District Court in Greensboro to approve their additional challenge to Amendment One.

Brook said speculating on possible decisions and a timeframe for the case is impossible.

But he said the litigation gives the ACLU a means of continuing the marriage equality conversation in North Carolina, a state where residents’ views of gay marriage remains mixed.